Incorporation of Company- Recent Changes

CS Pallavi Shashank Singh

With the advent of Companies Act, 2013 the series of amendments, regular notifications, insertion of new rules, frequent updates in the forms has become a thing of common. One such Chapter of Companies Act, i.e. Chapter II Incorporation of Company and Matters Incidental thereto has underwent quite frequent changes especially in the manner of incorporating a company.

THE EARLY PHASE:

Incorporation of Company using five forms:

DIR-3: Application for DIN

INC-1: Application for Name Approval

INC-7: Incorporation of Company

INC-22: Notice of situation of Registered Office

DIR-12: Particulars for Appointment of Directors

All the forms were required to be filed separately wherein Form DIR-3 and INC-1 were pre-requisite to incorporation while Form INC-7,INC-22 and DIR-12 were to be filed simultaneously at a time.

THE RISING PHASE:

This was the process followed for quite long until the Ministry brought a significant change by introducing the Integrated form INC-29 through Companies (Incorporation) Amendment Rules, 2015 notification dated 1^st May, 2015, which integrated three major things at a time:

• Incorporation of Company
• Notice of situation of Registered Office
• Appointment of Directors

Companies now had the option to file incorporation either through the earlier method or through INC-29.

THE BLOOMING PHASE:

Companies (Incorporation) Fourth Amendment Rules, 2016 notification dated 1.10.2016 simplified the process of incorporation with introduction of SPICe (Simplified Proforma for Incorporating Company Electronically) in Form INC-32. The major change that coupled with INC-32 was introduction of e-MOA (electronic Memorandum of Association) in Form INC-33 & e-AOA (electronic Articles of Association) in Form INC-34.

Now MCA took a vital step of doing away with physical Memorandum & Articles of Association of Company and now the subscribers had to sign digitally e-MOA & e-AOA. The integrated form INC-29, INC-30, INC-31 was done away with through the following notification.

Now this form served multipurpose, i.e. doing five things at a time:

• Application for DIN (subject to maximum of three directors)
• Application for Name Approval.
• Application for Incorporation of Company.
• Situation of Registered Office
• Appointment of Directors
• Application for PAN and TAN

Certificate of Incorporation to mention PAN

After the inclusion of application in PAN through INC-32 it has now being included in the COI issued by MCA vide Companies (Incorporation) Amendment Rules, 2017 notification dated 25^th January, 2017 effective from 30^th January, 2017, i.e. COI shall now on mention both CIN as well as PAN of the Company.

Omission of INC-7  

The Companies till date had the option of incorporating companies through separate forms (as illustrated in Early Phase) but Companies (Incorporation) Amendment Rules, 2018 notification dated 20^th January, 2018 omitted Form INC-7 for good and mandated Form INC-32 for filing of incorporation of companies. Now all the forms for incorporation are to be done via INC-32.

Exemption of fee for INC- 32

The notification further stated that Companies incorporated with effect from 26^th January, 2018 exempted the following companies from the fees on INC-32:

• Companies with a nominal capital of less than or equal to Rupees 10 lakhs
• Companies not having share capital whose number of members do not exceed 20.

This was a welcoming step brought for the ease of doing business.

Introduction of RUN (Reserve Unique Name):

RUN is online platform for availing name wherein the desired name along with its significance has to be entered and the fees has to be paid, thus it save much of time and effort. There was thus omission of INC-1 and now application for name approval can only be done through RUN and this revolutionary change was brought on 23^rd March, 2018 through Companies (Incorporation) Second Amendment Rules, 2018.

Declaration at the time of Commencement of Business

Companies (Amendment) Ordinance, 2018 in its inserted Section 10A elaborated that a company cannot commence its business or exercise its borrowing powers unless a declaration is filed by director within 180 days that every subscriber to the memorandum has paid the value of shares agreed to be taken by him on the date of making declaration and also filed with Registrar verification of its registered office.

The Companies vide notification dated 18^th December, 2018 introduced Form INC-20A through Companies (Incorporation) Fourth Amendment Rules, 2018 which is a declaration to be filed at the time of starting the business whose contents shall be verified by a Company Secretary of Chartered Accountant or Cost Accountant in practice.

Introduction of AGILE:

Ministry with the motive to empower the process of incorporation and to incorporate all the necessary formalities like application for GSTIN (Goods & Services Tax Identification Number), Employee State Insurance (ESI) and EPF (Employee Provident Fund) inserted Rule 38A and introduced Form INC-35 AGILE (Application for Goods and Services Identification Number, Employees State Insurance Corporation registration plus Employee Provident Fund organisation registration through Notification dated 29^th March, 2019, Companies (Incorporation) Third Amendment Rules, 2019.

Now the application for incorporation of Company under Rule 38 shall be accompanied by e-form AGILE for registration of:

• GSTIN w.e.f. 31^STMarch, 2019.
• EPFO w.e.f. 8^thApril, 2019.